2022 NWP 3 (2)

Nationwide Permit 3
Maintenance
Effective Date: February 25, 2022 / Expiration Date: March 14, 2026
Authority: Sections 10 and 404

(a) The repair, rehabilitation, or replacement of any previously authorized, currently serviceable
structure or fill, or of any currently serviceable structure or fill authorized by 33 CFR 330.3,
provided that the structure or fill is not to be put to uses differing from those uses specified or
contemplated for it in the original permit or the most recently authorized modification. Minor
deviations in the structure's configuration or filled area, including those due to changes in
materials, construction techniques, requirements of other regulatory agencies, or current
construction codes or safety standards that are necessary to make the repair, rehabilitation, or
replacement are authorized. This NWP also authorizes the removal of previously authorized
structures or fills. Any stream channel modification is limited to the minimum necessary for the
repair, rehabilitation, or replacement of the structure or fill; such modifications, including the
removal of material from the stream channel, must be immediately adjacent to the project.
This NWP also authorizes the removal of accumulated sediment and debris within, and in the
immediate vicinity of, the structure or fill. This NWP also authorizes the repair, rehabilitation, or
replacement of those structures or fills destroyed or damaged by storms, floods, fire or other
discrete events, provided the repair, rehabilitation, or replacement is commenced, or is under
contract to commence, within two years of the date of their destruction or damage. In cases of
catastrophic events, such as hurricanes or tornadoes, this two-year limit may be waived by the
district engineer, provided the permittee can demonstrate funding, contract, or other similar
delays.

(b) This NWP also authorizes the removal of accumulated sediments and debris outside the
immediate vicinity of existing structures (e.g., bridges, culverted road crossings, water intake
structures, etc.). The removal of sediment is limited to the minimum necessary to restore the
waterway in the vicinity of the structure to the approximate dimensions that existed when the
structure was built but cannot extend farther than 200 feet in any direction from the structure.
This 200-foot limit does not apply to maintenance dredging to remove accumulated sediments
blocking or restricting outfall and intake structures or to maintenance dredging to remove
accumulated sediments from canals associated with outfall and intake structures. All dredged
or excavated materials must be deposited and retained in an area that has no waters of the
United States unless otherwise specifically approved by the district engineer under separate
authorization.

(c) This NWP also authorizes temporary structures, fills, and work, including the use of
temporary mats, necessary to conduct the maintenance activity. Appropriate measures must
be taken to maintain normal downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges of dredged or fill material,
including cofferdams, are necessary for construction activities, access fills, or dewatering of
construction sites. Temporary fills must consist of materials, and be placed in a manner, that
will not be eroded by expected high flows. After conducting the maintenance activity,
temporary fills must be removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be revegetated, as
appropriate.

(d) This NWP does not authorize maintenance dredging for the primary purpose of navigation.
This NWP does not authorize beach restoration. This NWP does not authorize new stream
channelization or stream relocation projects.

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Notification: For activities authorized by paragraph (b) of this NWP, the permittee must submit
a pre-construction notification to the district engineer prior to commencing the activity (see
general condition 32). The pre-construction notification must include information regarding the
original design capacities and configurations of the outfalls, intakes, small impoundments, and
canals. (Authorities: Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the
Clean Water Act (Sections 10 and 404))

Note: This NWP authorizes the repair, rehabilitation, or replacement of any previously
authorized structure or fill that does not qualify for the Clean Water Act Section 404(f)
exemption for maintenance.

GENERAL CONDITIONS

Note: To qualify for NWP authorization, the prospective permittee must comply with the
following general conditions, as applicable, in addition to any regional or case-specific
conditions imposed by the division engineer or district engineer. Prospective permittees should
contact the appropriate Corps district office to determine if regional conditions have been
imposed on an NWP. Prospective permittees should also contact the appropriate Corps district
office to determine the status of Clean Water Act Section 401 water quality certification and/or
Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain
permit authorization under one or more NWPs, or who is currently relying on an existing or
prior permit authorization under one or more NWPs, has been and is on notice that all of the
provisions of 33 CFR 330.1 through 330.6 apply to every NWP authorization. Note especially
33 CFR 330.5 relating to the modification, suspension, or revocation of any NWP
authorization.

1. Navigation.

(a) No activity may cause more than a minimal adverse effect on navigation.

(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or
otherwise, must be installed and maintained at the permittee’s expense on authorized facilities
in navigable waters of the United States.

(c) The permittee understands and agrees that, if future operations by the United States
require the removal, relocation, or other alteration, of the structure or work herein authorized,
or if, in the opinion of the Secretary of the Army or his authorized representative, said structure
or work shall cause unreasonable obstruction to the free navigation of the navigable waters,
the permittee will be required, upon due notice from the Corps of Engineers, to remove,
relocate, or alter the structural work or obstructions caused thereby, without expense to the
United States. No claim shall be made against the United States on account of any such
removal or alteration.

2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle
movements of those species of aquatic life indigenous to the waterbody, including those
species that normally migrate through the area, unless the activity's primary purpose is to
impound water. All permanent and temporary crossings of waterbodies shall be suitably
culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the
movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing
should be designed and constructed to minimize adverse effects to aquatic life movements.

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3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided
to the maximum extent practicable. Activities that result in the physical destruction (e.g.,
through excavation, fill, or downstream smothering by substantial turbidity) of an important
spawning area are not authorized.

4. Migratory Bird Breeding Areas. Activities in waters of the United States that serve as
breeding areas for migratory birds must be avoided to the maximum extent practicable.

5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless
the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or
is a shellfish seeding or habitat restoration activity authorized by NWP 27.

6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies,
asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in
toxic amounts (see section 307 of the Clean Water Act).

7. Water Supply Intakes. No activity may occur in the proximity of a public water supply
intake, except where the activity is for the repair or improvement of public water supply intake
structures or adjacent bank stabilization.

8. Adverse Effects from Impoundments. If the activity creates an impoundment of water,
adverse effects to the aquatic system due to accelerating the passage of water, and/or
restricting its flow must be minimized to the maximum extent practicable.

9. Management of Water Flows. To the maximum extent practicable, the pre-construction
course, condition, capacity, and location of open waters must be maintained for each activity,
including stream channelization, storm water management activities, and temporary and
permanent road crossings, except as provided below. The activity must be constructed to
withstand expected high flows. The activity must not restrict or impede the passage of normal
or high flows unless the primary purpose of the activity is to impound water or manage high
flows. The activity may alter the pre-construction course, condition, capacity, and location of
open waters if it benefits the aquatic environment (e.g., stream restoration or relocation
activities).

10. Fills Within 100-Year Floodplains. The activity must comply with applicable FEMA-
approved state or local floodplain management requirements.

11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or
other measures must be taken to minimize soil disturbance.

12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls
must be used and maintained in effective operating condition during construction, and all
exposed soil and other fills, as well as any work below the ordinary high water mark or high
tide line, must be permanently stabilized at the earliest practicable date. Permittees are
encouraged to perform work within waters of the United States during periods of low-flow or
no-flow, or during low tides.

13. Removal of Structures and Fills. Temporary structures must be removed, to the
maximum extent practicable, after their use has been discontinued. Temporary fills must be
removed in their entirety and the affected areas returned to pre-construction elevations. The
affected areas must be revegetated, as appropriate.

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14. Proper Maintenance. Any authorized structure or fill shall be properly maintained,
including maintenance to ensure public safety and compliance with applicable NWP general
conditions, as well as any activity-specific conditions added by the district engineer to an NWP
authorization.

15. Single and Complete Project. The activity must be a single and complete project. The
same NWP cannot be used more than once for the same single and complete project.

16. Wild and Scenic Rivers.

(a) No NWP activity may occur in a component of the National Wild and Scenic River System,
or in a river officially designated by Congress as a ‘‘study river’’ for possible inclusion in the
system while the river is in an official study status, unless the appropriate Federal agency with
direct management responsibility for such river, has determined in writing that the proposed
activity will not adversely affect the Wild and Scenic River designation or study status.

(b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River
System, or in a river officially designated by Congress as a ‘‘study river’’ for possible inclusion
in the system while the river is in an official study status, the permittee must submit a pre-
construction notification (see general condition 32). The district engineer will coordinate the
PCN with the Federal agency with direct management responsibility for that river. Permittees
shall not begin the NWP activity until notified by the district engineer that the Federal agency
with direct management responsibility for that river has determined in writing that the proposed
NWP activity will not adversely affect the Wild and Scenic River designation or study status.

(c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land
management agency responsible for the designated Wild and Scenic River or study river (e.g.,
National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and
Wildlife Service). Information on these rivers is also available at: http://www.rivers.gov/.

17. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but
not limited to, reserved water rights and treaty fishing and hunting rights.

18. Endangered Species.

(a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize
the continued existence of a threatened or endangered species or a species proposed for such
designation, as identified under the Federal Endangered Species Act (ESA), or which will
directly or indirectly destroy or adversely modify the critical habitat of such species. No activity
is authorized under any NWP which “may affect” a listed species or critical habitat unless ESA
section 7 consultation addressing the consequences of the proposed activity on listed species
or critical habitat has been completed. See 50 CFR 402.02 for the definition of “effects of the
action” for the purposes of ESA section 7 consultation, as well as 50 CFR 402.17, which
provides further explanation under ESA section 7 regarding “activities that are reasonably
certain to occur” and “consequences caused by the proposed action.”

(b) Federal agencies should follow their own procedures for complying with the requirements
of the ESA (see 33 CFR 330.4(f)(1)). If pre-construction notification is required for the
proposed activity, the Federal permittee must provide the district engineer with the appropriate
documentation to demonstrate compliance with those requirements. The district engineer will
verify that the appropriate documentation has been submitted. If the appropriate
documentation has not been submitted, additional ESA section 7 consultation may be
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necessary for the activity and the respective federal agency would be responsible for fulfilling
its obligation under section 7 of the ESA.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if
any listed species or designated critical habitat might be affected or is in the vicinity of the
activity, or if the activity is located in designated critical habitat, and shall not begin work on the
activity until notified by the district engineer that the requirements of the ESA have been
satisfied and that the activity is authorized. For activities that might affect Federally-listed
endangered or threatened species or designated critical habitat, the pre-construction
notification must include the name(s) of the endangered or threatened species that might be
affected by the proposed activity or that utilize the designated critical habitat that might be
affected by the proposed activity. The district engineer will determine whether the proposed
activity “may affect” or will have “no effect” to listed species and designated critical habitat and
will notify the non- Federal applicant of the Corps’ determination within 45 days of receipt of a
complete pre-construction notification. For activities where the non-Federal applicant has
identified listed species or critical habitat that might be affected or is in the vicinity of the
activity, and has so notified the Corps, the applicant shall not begin work until the Corps has
provided notification that the proposed activity will have “no effect” on listed species or critical
habitat, or until ESA section 7 consultation has been completed. If the non-Federal applicant
has not heard back from the Corps within 45 days, the applicant must still wait for notification
from the Corps.

(d) As a result of formal or informal consultation with the FWS or NMFS the district engineer
may add species specific permit conditions to the NWPs.

(e) Authorization of an activity by an NWP does not authorize the “take” of a threatened or
endangered species as defined under the ESA. In the absence of separate authorization (e.g.,
an ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the
FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction
of the United States to take a listed species, where "take" means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
The word “harm” in the definition of “take'' means an act which actually kills or injures wildlife.
Such an act may include significant habitat modification or degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral patterns, including breeding,
feeding or sheltering.

(f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with
an approved Habitat Conservation Plan for a project or a group of projects that includes the
proposed NWP activity, the non-federal applicant should provide a copy of that ESA section
10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district
engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to
determine whether the proposed NWP activity and the associated incidental take were
considered in the internal ESA section 7 consultation conducted for the ESA section
10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the
proposed NWP activity and the associated incidental take were considered in the internal ESA
section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not
need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The
district engineer will notify the non-federal applicant within 45 days of receipt of a complete
pre- construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed
NWP activity or whether additional ESA section 7 consultation is required.

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(g) Information on the location of threatened and endangered species and their critical habitat
can be obtained directly from the offices of the FWS and NMFS or their worldwide Web pages
at http://www.fws.gov/ or http://www.fws.gov/ipac and
http://www.nmfs.noaa.gov/pr/species/esa/ respectively.

19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring
that an action authorized by NWP complies with the Migratory Bird Treaty Act and the Bald
and Golden Eagle Protection Act. The permittee is responsible for contacting the appropriate
local office of the U.S. Fish and Wildlife Service to determine what measures, if any, are
necessary or appropriate to reduce adverse effects to migratory birds or eagles, including
whether "incidental take" permits are necessary and available under the Migratory Bird Treaty
Act or Bald and Golden Eagle Protection Act for a particular activity.

20. Historic Properties.

(a) No activity is authorized under any NWP which may have the potential to cause effects to
properties listed, or eligible for listing, in the National Register of Historic Places until the
requirements of Section 106 of the National Historic Preservation Act (NHPA) have been
satisfied.

(b) Federal permittees should follow their own procedures for complying with the requirements
of section 106 of the National Historic Preservation Act (see 33 CFR 330.4(g)(1)). If pre-
construction notification is required for the proposed NWP activity, the Federal permittee must
provide the district engineer with the appropriate documentation to demonstrate compliance
with those requirements. The district engineer will verify that the appropriate documentation
has been submitted. If the appropriate documentation is not submitted, then additional
consultation under section 106 may be necessary. The respective federal agency is
responsible for fulfilling its obligation to comply with section 106.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if
the NWP activity might have the potential to cause effects to any historic properties listed on,
determined to be eligible for listing on, or potentially eligible for listing on the National Register
of Historic Places, including previously unidentified properties. For such activities, the pre-
construction notification must state which historic properties might have the potential to be
affected by the proposed NWP activity or include a vicinity map indicating the location of the
historic properties or the potential for the presence of historic properties. Assistance regarding
information on the location of, or potential for, the presence of historic properties can be sought
from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated
tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR
330.4(g)). When reviewing pre-construction notifications, district engineers will comply with the
current procedures for addressing the requirements of section 106 of the National Historic
Preservation Act. The district engineer shall make a reasonable and good faith effort to carry
out appropriate identification efforts commensurate with potential impacts, which may include
background research, consultation, oral history interviews, sample field investigation, and/or
field survey. Based on the information submitted in the PCN and these identification efforts, the
district engineer shall determine whether the proposed NWP activity has the potential to cause
effects on the historic properties. Section 106 consultation is not required when the district
engineer determines that the activity does not have the potential to cause effects on historic
properties (see 36 CFR 800.3(a)). Section 106 consultation is required when the district
engineer determines that the activity has the potential to cause effects on historic properties.
The district engineer will conduct consultation with consulting parties identified under 36 CFR
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800.2(c) when he or she makes any of the following effect determinations for the purposes of
section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect.

(d) Where the non-Federal applicant has identified historic properties on which the proposed
NWP activity might have the potential to cause effects and has so notified the Corps, the non-
Federal applicant shall not begin the activity until notified by the district engineer either that the
activity has no potential to cause effects to historic properties or that NHPA section 106
consultation has been completed. For non-federal permittees, the district engineer will notify
the prospective permittee within 45 days of receipt of a complete pre-construction notification
whether NHPA section 106 consultation is required. If NHPA section 106 consultation is
required, the district engineer will notify the non-Federal applicant that he or she cannot begin
the activity until section 106 consultation is completed. If the non-Federal applicant has not
heard back from the Corps within 45 days, the applicant must still wait for notification from the
Corps.

(e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C.
306113) prevents the Corps from granting a permit or other assistance to an applicant who,
with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly
adversely affected a historic property to which the permit would relate, or having legal power to
prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation
with the Advisory Council on Historic Preservation (ACHP), determines that circumstances
justify granting such assistance despite the adverse effect created or permitted by the
applicant. If circumstances justify granting the assistance, the Corps is required to notify the
ACHP and provide documentation specifying the circumstances, the degree of damage to the
integrity of any historic properties affected, and proposed mitigation. This documentation must
include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the
undertaking occurs on or affects historic properties on tribal lands or affects properties of
interest to those tribes, and other parties known to have a legitimate interest in the impacts to
the permitted activity on historic properties.

21. Discovery of Previously Unknown Remains and Artifacts. Permittees that discover any
previously unknown historic, cultural or archeological remains and artifacts while
accomplishing the activity authorized by NWP, they must immediately notify the district
engineer of what they have found, and to the maximum extent practicable, avoid construction
activities that may affect the remains and artifacts until the required coordination has been
completed. The district engineer will initiate the Federal, Tribal, and state coordination required
to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in
the National Register of Historic Places.

22. Designated Critical Resource Waters. Critical resource waters include, NOAA-managed
marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The
district engineer may designate, after notice and opportunity for public comment, additional
waters officially designated by a state as having particular environmental or ecological
significance, such as outstanding national resource waters or state natural heritage sites. The
district engineer may also designate additional critical resource waters after notice and
opportunity for public comment.

(a) Discharges of dredged or fill material into waters of the United States are not authorized
by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, 52, 57 and 5258 for
any activity within, or directly affecting, critical resource waters, including wetlands adjacent to
such waters.

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(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38,
and 54, notification is required in accordance with general condition 32, for any activity
proposed by permittees in the designated critical resource waters including wetlands adjacent
to those waters. The district engineer may authorize activities under these NWPs only after
she or he determines that the impacts to the critical resource waters will be no more than
minimal.

23. Mitigation. The district engineer will consider the following factors when determining
appropriate and practicable mitigation necessary to ensure that the individual and cumulative
adverse environmental effects are no more than minimal:

(a) The activity must be designed and constructed to avoid and minimize adverse effects,
both temporary and permanent, to waters of the United States to the maximum extent
practicable at the project site (i.e., on site).

(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for
resource losses) will be required to the extent necessary to ensure that the individual and
cumulative adverse environmental effects are no more than minimal.

(c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland
losses that exceed 1⁄10-acre and require pre-construction notification, unless the district
engineer determines in writing that either some other form of mitigation would be more
environmentally appropriate or the adverse environmental effects of the proposed activity are
no more than minimal, and provides an activity-specific waiver of this requirement. For wetland
losses of 1⁄10-acre or less that require pre-construction notification, the district engineer may
determine on a case-by-case basis that compensatory mitigation is required to ensure that the
activity results in only minimal adverse environmental effects.

(d) Compensatory mitigation at a minimum one-for-one ratio will be required for all losses of
stream bed that exceed 1/103/100-acre and require pre-construction notification, unless the
district engineer determines in writing that either some other form of mitigation would be more
environmentally appropriate or the adverse environmental effects of the proposed activity are
no more than minimal, and provides an activity-specific waiver of this requirement. This
compensatory mitigation requirement may be satisfied through the restoration or enhancement
of riparian areas next to streams in accordance with paragraph (e) of this general condition.
For losses of stream bed of 1/103/100-acre or less that require pre- construction notification,
the district engineer may determine on a case-by-case basis that compensatory mitigation is
required to ensure that the activity results in only minimal adverse environmental effects.
Compensatory mitigation for losses of streams should be provided, if practicable, through
stream rehabilitation, enhancement, or preservation since streams are difficult-to- replace
resources (see 33 CFR 332.3(e)(3)).

(e) Compensatory mitigation plans for NWP activities in or near streams or other open waters
will normally include a requirement for the restoration or enhancement, maintenance, and legal
protection (e.g., conservation easements) of riparian areas next to open waters. In some
cases, the restoration or maintenance/protection of riparian areas may be the only
compensatory mitigation required. If restoring riparian areas involves planting vegetation, only
native species should be planted. The width of the required riparian area will address
documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be
25 to 50 feet wide on each side of the stream, but the district engineer may require slightly
wider riparian areas to address documented water quality or habitat loss concerns. If it is not
possible to restore or maintain/protect a riparian area on both sides of a stream, or if the
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waterbody is a lake or coastal waters, then restoring or maintaining/protecting a riparian area
along a single bank or shoreline may be sufficient. Where both wetlands and open waters exist
on the project site, the district engineer will determine the appropriate compensatory mitigation
(e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic
environment on a watershed basis. In cases where riparian areas are determined to be the
most appropriate form of minimization or compensatory mitigation, the district engineer may
waive or reduce the requirement to provide wetland compensatory mitigation for wetland
losses.

(f) Compensatory mitigation projects provided to offset losses of aquatic resources must
comply with the applicable provisions of 33 CFR part 332.

(1) The prospective permittee is responsible for proposing an appropriate compensatory
mitigation option if compensatory mitigation is necessary to ensure that the activity results
in no more than minimal adverse environmental effects. For the NWPs, the preferred
mechanism for providing compensatory mitigation is mitigation bank credits or in-lieu fee
program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and
type of mitigation bank or in-lieu credits are not available at the time the PCN is submitted
to the district engineer, the district engineer may approve the use of permittee- responsible
mitigation.

(2) The amount of compensatory mitigation required by the district engineer must be
sufficient to ensure that the authorized activity results in no more than minimal individual
and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR
332.3(f)).

(3) Since the likelihood of success is greater and the impacts to potentially valuable
uplands are reduced, aquatic resource restoration should be the first compensatory
mitigation option considered for permittee-responsible mitigation.

(4) If permittee-responsible mitigation is the proposed option, the prospective permittee is
responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may
be used by the district engineer to make the decision on the NWP verification request, but a
final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2)
through (14) must be approved by the district engineer before the permittee begins work in
waters of the United States, unless the district engineer determines that prior approval of
the final mitigation plan is not practicable or not necessary to ensure timely completion of
the required compensatory mitigation (see 33 CFR 332.3(k)(3)). If permittee-responsible
mitigation is the proposed option, and the proposed compensatory mitigation site is located
on land in which another federal agency holds an easement, the district engineer will
coordinate with that federal agency to determine if proposed compensatory mitigation
project is compatible with the terms of the easement.

(5) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation
plan needs to address only the baseline conditions at the impact site and the number of
credits to be provided (see 33 CFR 332.4(c)(1)(ii)).

(6) Compensatory mitigation requirements (e.g., resource type and amount to be provided
as compensatory mitigation, site protection, ecological performance standards, monitoring
requirements) may be addressed through conditions added to the NWP authorization,
instead of components of a compensatory mitigation plan (see 33 CFR 332.4(c)(1)(ii)).

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(g) Compensatory mitigation will not be used to increase the acreage losses allowed by the
acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1⁄2-acre, it cannot
be used to authorize any NWP activity resulting in the loss of greater than 1⁄2-acre of waters of
the United States, even if compensatory mitigation is provided that replaces or restores some
of the lost waters. However, compensatory mitigation can and should be used, as necessary,
to ensure that an NWP activity already meeting the established acreage limits also satisfies the
no more than minimal impact requirement for the NWPs.

(h) Permittees may propose the use of mitigation banks, in-lieu fee programs, or permittee-
responsible mitigation. When developing a compensatory mitigation proposal, the permittee
must consider appropriate and practicable options consistent with the framework at 33 CFR
332.3(b). For activities resulting in the loss of marine or estuarine resources, permittee-
responsible mitigation may be environmentally preferable if there are no mitigation banks or in-
lieu fee programs in the area that have marine or estuarine credits available for sale or transfer
to the permittee. For permittee-responsible mitigation, the special conditions of the NWP
verification must clearly indicate the party or parties responsible for the implementation and
performance of the compensatory mitigation project, and, if required, its long-term
management.

(i) Where certain functions and services of waters of the United States are permanently
adversely affected by a regulated activity, such as discharges of dredged or fill material into
waters of the United States that will convert a forested or scrub-shrub wetland to an
herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be
required to reduce the adverse environmental effects of the activity to the no more than
minimal level.

24. Safety of Impoundment Structures. To ensure that all impoundment structures are
safely designed, the district engineer may require non-Federal applicants to demonstrate that
the structures comply with established state or federal, dam safety criteria or have been
designed by qualified persons. The district engineer may also require documentation that the
design has been independently reviewed by similarly qualified persons, and appropriate
modifications made to ensure safety.

25. Water Quality.

(a) Where the certifying authority (state, authorized tribe, or EPA, as appropriate) has not
previously certified compliance of an NWP with CWA section 401, a CWA section 401 water
quality certification for the proposed discharge must be obtained or waived (see 33 CFF
330.4(c)). If the permittee cannot comply with all of the conditions of a water quality
certification previously issued by certifying authority for the issuance of the NWP, then the
permittee must obtain a water quality certification or waiver for the proposed discharge in order
for the activity to be authorized by an NWP.

(b) If the NWP activity requires pre-construction notification and the certifying authority has
not previously certified compliance of an NWP with CWA section 401, the proposed discharge
is not authorized by an NWP until water quality certification is obtained or waived. If the
certifying authority issues a water quality certification for the proposed discharge, the permittee
must submit a copy of the certification to the district engineer. The discharge is not authorized
by an NWP until the district engineer has notified the permittee that the water quality
certification requirement has been satisfied by the issuance of a water quality certification or a
waiver.

Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

11

(c) The district engineer or certifying authority may require additional water quality
management measures to ensure that the authorized activity does not result in more than
minimal degradation of water quality.

26. Coastal Zone Management. In coastal states where an NWP has not previously received
a state coastal zone management consistency concurrence, an individual state coastal zone
management consistency concurrence must be obtained, or a presumption of concurrence
must occur (see 33 CFR 330.4(d)). If the permittee cannot comply with all of the conditions of a
coastal zone management consistency concurrence previously issued by the state, then the
permittee must obtain an individual coastal zone management consistency concurrence or
presumption of concurrence in order for the activity to be authorized by an NWP. The district
engineer or a state may require additional measures to ensure that the authorized activity is
consistent with state coastal zone management requirements.

27. Regional and Case-By-Case Conditions. The activity must comply with any regional
conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with
any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in
its CWA section 401 Water Quality Certification, or by the state in its Coastal Zone
Management Act consistency determination.

28. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and
complete project is authorized, subject to the following restrictions:

(a) If only one of the NWPs used to authorize the single and complete project has a specified
acreage limit, the acreage loss of waters of the United States cannot exceed the acreage limit
of the NWP with the highest specified acreage limit. For example, if a road crossing over tidal
waters is constructed under NWP 14, with associated bank stabilization authorized by NWP
13, the maximum acreage loss of waters of the United States for the total project cannot
exceed 1⁄3-acre.

(b) If one or more of the NWPs used to authorize the single and complete project has
specified acreage limits, the acreage loss of waters of the United States authorized by those
NWPs cannot exceed their respective specified acreage limits. For example, if a commercial
development is constructed under NWP 39, and the single and complete project includes the
filling of an upland ditch authorized by NWP 46, the maximum acreage loss of waters of the
United States for the commercial development under NWP 39 cannot exceed 1⁄2-acre, and the
total acreage loss of waters of United States due to the NWP 39 and 46 activities cannot
exceed 1 acre.

29. Transfer of Nationwide Permit Verifications. If the permittee sells the property
associated with a nationwide permit verification, the permittee may transfer the nationwide
permit verification to the new owner by submitting a letter to the appropriate Corps district
office to validate the transfer. A copy of the nationwide permit verification must be attached to
the letter, and the letter must contain the following statement and signature:

‘‘When the structures or work authorized by this nationwide permit are still in existence at the
time the property is transferred, the terms and conditions of this nationwide permit,
including any special conditions, will continue to be binding on the new owner(s) of the
property. To validate the transfer of this nationwide permit and the associated liabilities
associated with compliance with its terms and conditions, have the transferee sign and
date below.’’
_______________________________________________
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

12

(Transferee)
_______________________________________________
(Date)

30. Compliance Certification. Each permittee who receives an NWP verification letter from
the Corps must provide a signed certification documenting completion of the authorized activity
and implementation of any required compensatory mitigation. The success of any required
permittee-responsible mitigation, including the achievement of ecological performance
standards, will be addressed separately by the district engineer. The Corps will provide the
permittee the certification document with the NWP verification letter. The certification
document will include:

(a) A statement that the authorized activity was done in accordance with the NWP
authorization, including any general, regional, or activity-specific conditions;

(b) A statement that the implementation of any required compensatory mitigation was
completed in accordance with the permit conditions. If credits from a mitigation bank or in-lieu
fee program are used to satisfy the compensatory mitigation requirements, the certification
must include the documentation required by 33 CFR 332.3(l)(3) to confirm that the permittee
secured the appropriate number and resource type of credits; and

(c) The signature of the permittee certifying the completion of the activity and mitigation. The
completed certification document must be submitted to the district engineer within 30 days of
completion of the authorized activity or the implementation of any required compensatory
mitigation, whichever occurs later.

31. Activities Affecting Structures or Works Built by the United States. If an NWP activity
also requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or
temporarily or permanently occupy or use a U.S. Army Corps of Engineers (USACE) federally
authorized Civil Works project (a ‘‘USACE project’’), the prospective permittee must submit a
pre-construction notification. See paragraph (b)(10) of general condition 32. An activity that
requires section 408 permission and/or review is not authorized by an NWP until the
appropriate Corps office issues the section 408 permission or completes its review to alter,
occupy, or use the USACE project, and the district engineer issues a written NWP verification.

32. Pre-Construction Notification.

(a) Timing. Where required by the terms of the NWP, the permittee must notify the district
engineer by submitting a pre-construction notification (PCN) as early as possible. The district
engineer must determine if the PCN is complete within 30 calendar days of the date of receipt
and, if the PCN is determined to be incomplete, notify the prospective permittee within that 30
day period to request the additional information necessary to make the PCN complete. The
request must specify the information needed to make the PCN complete. As a general rule,
district engineers will request additional information necessary to make the PCN complete only
once. However, if the prospective permittee does not provide all of the requested information,
then the district engineer will notify the prospective permittee that the PCN is still incomplete
and the PCN review process will not commence until all of the requested information has been
received by the district engineer. The prospective permittee shall not begin the activity until
either:

(1) He or she is notified in writing by the district engineer that the activity may proceed
under the NWP with any special conditions imposed by the district or division engineer; or
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

13

(2) 45 calendar days have passed from the district engineer’s receipt of the complete
PCN and the prospective permittee has not received written notice from the district or
division engineer. However, if the permittee was required to notify the Corps pursuant to
general condition 18 that listed species or critical habitat might be affected or are in the
vicinity of the activity, or to notify the Corps pursuant to general condition 20 that the
activity might have the potential to cause effects to historic properties, the permittee
cannot begin the activity until receiving written notification from the Corps that there is ‘‘no
effect’’ on listed species or ‘‘no potential to cause effects’’ on historic properties, or that
any consultation required under Section 7 of the Endangered Species Act (see 33 CFR
330.4(f)) and/or section 106 of the National Historic Preservation Act (see 33 CFR
330.4(g)) has been completed. If the proposed activity requires a written waiver to exceed
specified limits of an NWP, the permittee may not begin the activity until the district
engineer issues the waiver. If the district or division engineer notifies the permittee in
writing that an individual permit is required within 45 calendar days of receipt of a complete
PCN, the permittee cannot begin the activity until an individual permit has been obtained.
Subsequently, the permittee’s right to proceed under the NWP may be modified,
suspended, or revoked only in accordance with the pr set forth in 33 CFR 330.5(d)(2).

(b) Contents of Pre-Construction Notification: The PCN must be in writing and include the
following information:

(1) Name, address and telephone numbers of the prospective permittee;

(2) Location of the proposed activity;

(3) Identify the specific NWP or NWP(s) the prospective permittee wants to use to
authorize the proposed activity;

(4)
(i) A description of the proposed activity; the activity’s purpose; direct and indirect
adverse environmental effects the activity would cause, including the anticipated
amount of loss of wetlands, other special aquatic sites, and other waters expected to
result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; a
description of any proposed mitigation measures intended to reduce the adverse
environmental effects caused by the proposed activity; and any other NWP(s), regional
general permit(s), or individual permit(s) used or intended to be used to authorize any
part of the proposed project or any related activity, including other separate and distant
crossings for linear projects that require Department of the Army authorization but do
not require pre-construction notification. The description of the proposed activity and
any proposed mitigation measures should be sufficiently detailed to allow the district
engineer to determine that the adverse environmental effects of the activity will be no
more than minimal and to determine the need for compensatory mitigation or other
mitigation measures.

(ii) For linear projects where one or more single and complete crossings require pre-
construction notification, the PCN must include the quantity of anticipated losses of
wetlands, other special aquatic sites, and other waters for each single and complete
crossing of those wetlands, other special aquatic sites, and other waters (including
those single and complete crossings authorized by an NWP but do not require PCNs).
This information will be used by the district engineer to evaluate the cumulative adverse
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

14

environmental effects of the proposed linear project and does not change those non-
PCN NWP activities into NWP PCNs.

(iii) Sketches should be provided when necessary to show that the activity complies with
the terms of the NWP. (Sketches usually clarify the activity and when provided results in
a quicker decision. Sketches should contain sufficient detail to provide an illustrative
description of the proposed activity (e.g., a conceptual plan), but do not need to be
detailed engineering plans).

(5) The PCN must include a delineation of wetlands, other special aquatic sites, and other
waters, such as lakes and ponds, and perennial and intermittent streams, on the project
site. Wetland delineations must be prepared in accordance with the current method
required by the Corps. The permittee may ask the Corps to delineate the special aquatic
sites and other waters on the project site, but there may be a delay if the Corps does the
delineation, especially if the project site is large or contains many wetlands, other special
aquatic sites, and other waters. Furthermore, the 45-day period will not start until the
delineation has been submitted to or completed by the Corps, as appropriate.

(6) If the proposed activity will result in the loss of greater than 1⁄10-acre of wetlands or
3⁄100-acre of stream bed and a PCN is required, the prospective permittee must submit a
statement describing how the mitigation requirement will be satisfied, or explaining why
the adverse environmental effects are no more than minimal and why compensatory
mitigation should not be required. As an alternative, the prospective permittee may submit
a conceptual or detailed mitigation plan.

(7) For non-federal permittees, if any listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed for such designation) might be
affected or is in the vicinity of the activity, or if the activity is located in designated critical
habitat (or critical habitat proposed for such designation), the PCN must include the
name(s) of those endangered or threatened species (or species proposed for listing) that
might be affected by the proposed activity or utilize the designated critical habitat (or
critical habitat proposed for such designation) that might be affected by the proposed
activity. For NWP activities that require pre-construction notification, Federal permittees
must provide documentation demonstrating compliance with the Endangered Species Act.

(8) For non-federal permittees, if the NWP activity might have the potential to cause
effects to a historic property listed on, determined to be eligible for listing on, or potentially
eligible for listing on, the National Register of Historic Places, the PCN must state which
historic property might have the potential to be affected by the proposed activity or include
a vicinity map indicating the location of the historic property. For NWP activities that
require pre-construction notification, Federal permittees must provide documentation
demonstrating compliance with section 106 of the National Historic Preservation Act.

(9) For an activity that will occur in a component of the National Wild and Scenic River
System, or in a river officially designated by Congress as a ‘‘study river’’ for possible
inclusion in the system while the river is in an official study status, the PCN must identify
the Wild and Scenic River or the ‘‘study river’’ (see general condition 16); and

(10) For an NWP activity that requires permission from, or review by, the Corps pursuant
to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S.
Army Corps of Engineers federally authorized civil works project, the pre-construction
notification must include a statement confirming that the project proponent has submitted a
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

15

written request for section 408 permission from, or review by, the Corps office having
jurisdiction over that USACE project.

(c) Form of Pre-Construction Notification: The nationwide permit pre-construction notification
form (Form ENG 6082) should be used for NWP PCNs. A letter containing the required
information may also be used. Applicants may provide electronic files of PCNs and supporting
materials if the district engineer has established tools and procedures for electronic submittals.

(d) Agency Coordination:

(1) The district engineer will consider any comments from Federal and state agencies
concerning the proposed activity’s compliance with the terms and conditions of the NWPs
and the need for mitigation to reduce the activity’s adverse environmental effects so that
they are no more than minimal.

(2) Agency coordination is required for:

(i) All NWP activities that require pre-construction notification and result in the loss of
greater than 1⁄2-acre of waters of the United States;

(ii) NWP 13 activities in excess of 500 linear feet, fills greater than one cubic yard per
running foot, or involve discharges of dredged or fill material into special aquatic sites;
and

(iii) NWP 54 activities in excess of 500 linear feet, or that extend into the waterbody
more than 30 feet from the mean low water line in tidal waters or the ordinary high
water mark in the Great Lakes.

(3) When agency coordination is required, the district engineer will immediately provide
(e.g., via email, facsimile transmission, overnight mail, or other expeditious manner) a
copy of the complete PCN to the appropriate Federal or state offices (FWS, state natural
resource or water quality agency, EPA, and, if appropriate, the NMFS). With the exception
of NWP 37, these agencies will have 10 calendar days from the date the material is
transmitted to notify the district engineer via telephone, facsimile transmission, or email
that they intend to provide substantive, site-specific comments. The comments must
explain why the agency believes the adverse environmental effects will be more than
minimal. If so, contacted by an agency, the district engineer will wait an additional 15
calendar days before making a decision on the pre- construction notification. The district
engineer will fully consider agency comments received within the specified time frame
concerning the proposed activity’s compliance with the terms and conditions of the NWPs,
including the need for mitigation to ensure that the net adverse environmental effects of
the proposed activity are no more than minimal. The district engineer will provide no
response to the resource agency, except as provided below. The district engineer will
indicate in the administrative record associated with each pre-construction notification that
the resource agencies’ concerns were considered. For NWP 37, the emergency
watershed protection and rehabilitation activity may proceed immediately in cases where
there is an unacceptable hazard to life or a significant loss of property or economic
hardship will occur. The district engineer will consider any comments received to decide
whether the NWP 37 authorization should be modified, suspended, or revoked in
accordance with the procedures at 33 CFR 330.5.

Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

16

(4) In cases of where the prospective permittee is not a Federal agency, the district
engineer will provide a response to NMFS within 30 calendar days of receipt of any
Essential Fish Habitat conservation recommendations, as required by section 305(b)(4)(B)
of the Magnuson-Stevens Fishery Conservation and Management Act.

(5) Applicants are encouraged to provide the Corps with either electronic files or multiple
copies of pre-construction notifications to expedite agency coordination.

DISTRICT ENGINEER’S DECISION

1. In reviewing the PCN for the proposed activity, the district engineer will determine whether
the activity authorized by the NWP will result in more than minimal individual or cumulative
adverse environmental effects or may be contrary to the public interest. If a project proponent
requests authorization by a specific NWP, the district engineer should issue the NWP
verification for that activity if it meets the terms and conditions of that NWP, unless he or she
determines, after considering mitigation, that the proposed activity will result in more than
minimal individual and cumulative adverse effects on the aquatic environment and other
aspects of the public interest and exercises discretionary authority to require an individual
permit for the proposed activity. For a linear project, this determination will include an
evaluation of the single and complete crossings of waters of the United States that require
PCNs to determine whether they individually satisfy the terms and conditions of the NWP(s),
as well as the cumulative effects caused by all of the crossings of waters of the United States
authorized by an NWP. If an applicant requests a waiver of an applicable limit, as provided for
in NWPs 13, 36, or 54, the district engineer will only grant the waiver upon a written
determination that the NWP activity will result in only minimal individual and cumulative
adverse environmental effects.

2. When making minimal adverse environmental effects determinations the district engineer
will consider the direct and indirect effects caused by the NWP activity. He or she will also
consider the cumulative adverse environmental effects caused by activities authorized by an
NWP and whether those cumulative adverse environmental effects are no more than minimal.
The district engineer will also consider site specific factors, such as the environmental setting
in the vicinity of the NWP activity, the type of resource that will be affected by the NWP activity,
the functions provided by the aquatic resources that will be affected by the NWP activity, the
degree or magnitude to which the aquatic resources perform those functions, the extent that
aquatic resource functions will be lost as a result of the NWP activity (e.g., partial or complete
loss), the duration of the adverse effects (temporary or permanent), the importance of the
aquatic resource functions to the region (e.g., watershed or ecoregion), and mitigation required
by the district engineer. If an appropriate functional or condition assessment method is
available and practicable to use, that assessment method may be used by the district engineer
to assist in the minimal adverse environmental effects determination. The district engineer may
add case-specific special conditions to the NWP authorization to address site-specific
environmental concerns.

3. If the proposed activity requires a PCN and will result in a loss of greater than 1⁄10-acre of
wetlands or 3⁄100-acre of stream bed, the prospective permittee should submit a mitigation
proposal with the PCN. Applicants may also propose compensatory mitigation for NWP
activities with smaller impacts, or for impacts to other types of waters. The district engineer will
consider any proposed compensatory mitigation or other mitigation measures the applicant
has included in the proposal in determining whether the net adverse environmental effects of
the proposed activity are no more than minimal. The compensatory mitigation proposal may be
either conceptual or detailed. If the district engineer determines that the activity complies with
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

17

the terms and conditions of the NWP and that the adverse environmental effects are no more
than minimal, after considering mitigation, the district engineer will notify the permittee and
include any activity-specific conditions in the NWP verification the district engineer deems
necessary. Conditions for compensatory mitigation requirements must comply with the
appropriate provisions at 33 CFR 332.3(k). The district engineer must approve the final
mitigation plan before the permittee commences work in waters of the United States, unless
the district engineer determines that prior approval of the final mitigation plan is not practicable
or not necessary to ensure timely completion of the required compensatory mitigation. If the
prospective permittee elects to submit a compensatory mitigation plan with the PCN, the
district engineer will expeditiously review the proposed compensatory mitigation plan. The
district engineer must review the proposed compensatory mitigation plan within 45 calendar
days of receiving a complete PCN and determine whether the proposed mitigation would
ensure that the NWP activity results in no more than minimal adverse environmental effects. If
the net adverse environmental effects of the NWP activity (after consideration of the mitigation
proposal) are determined by the district engineer to be no more than minimal, the district
engineer will provide a timely written response to the applicant. The response will state that the
NWP activity can proceed under the terms and conditions of the NWP, including any activity-
specific conditions added to the NWP authorization by the district engineer.

4. If the district engineer determines that the adverse environmental effects of the proposed
activity are more than minimal, then the district engineer will notify the applicant either:

(a) That the activity does not qualify for authorization under the NWP and instruct the applicant
on the procedures to seek authorization under an individual permit;

(b) that the activity is authorized under the NWP subject to the applicant’s submission of a
mitigation plan that would reduce the adverse environmental effects so that they are no more
than minimal; or

(c) that the activity is authorized under the NWP with specific modifications or conditions.
Where the district engineer determines that mitigation is required to ensure no more than
minimal adverse environmental effects, the activity will be authorized within the 45-day PCN
period (unless additional time is required to comply with general conditions 18, 20, and/or 31),
with activity-specific conditions that state the mitigation requirements. The authorization will
include the necessary conceptual or detailed mitigation plan or a requirement that the applicant
submit a mitigation plan that would reduce the adverse environmental effects so that they are
no more than minimal. When compensatory mitigation is required, no work in waters of the
United States may occur until the district engineer has approved a specific mitigation plan or
has determined that prior approval of a final mitigation plan is not practicable or not necessary
to ensure timely completion of the required compensatory mitigation.

FURTHER INFORMATION

1. District engineers have authority to determine if an activity complies with the terms and
conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or
authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project (see
general condition 31).

Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

18

DEFINITIONS

Best management practices (BMPs): Policies, practices, procedures, or structures
implemented to mitigate the adverse environmental effects on surface water quality resulting
from development. BMPs are categorized as structural or non-structural.

Compensatory mitigation: The restoration (re-establishment or rehabilitation), establishment
(creation), enhancement, and/or in certain circumstances preservation of aquatic resources for
the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and
practicable avoidance and minimization has been achieved.

Currently serviceable: Useable as is or with some maintenance, but not so degraded as to
essentially require reconstruction.

Direct effects: Effects that are caused by the activity and occur at the same time and place.

Discharge: The term ‘‘discharge’’ means any discharge of dredged or fill material into waters of
the United States.

Ecological reference: A model used to plan and design an aquatic habitat and riparian area
restoration, enhancement, or establishment activity under NWP 27. An ecological reference
may be based on the structure, functions, and dynamics of an aquatic habitat type or a riparian
area type that currently exists in the region where the proposed NWP 27 activity is located.
Alternatively, an ecological reference may be based on a conceptual model for the aquatic
habitat type or riparian area type to be restored, enhanced, or established as a result of the
proposed NWP 27 activity. An ecological reference takes into account the range of variation of
the aquatic habitat type or riparian area type in the region.

Enhancement: The manipulation of the physical, chemical, or biological characteristics of an
aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s).
Enhancement results in the gain of selected aquatic resource function(s), but may also lead to
a decline in other aquatic resource function(s). Enhancement does not result in a gain in
aquatic resource area.

Establishment (creation): The manipulation of the physical, chemical, or biological
characteristics present to develop an aquatic resource that did not previously exist at an
upland site. Establishment results in a gain in aquatic resource area.

High Tide Line: The line of intersection of the land with the water’s surface at the maximum
height reached by a rising tide. The high tide line may be determined, in the absence of actual
data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine
shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation
lines, tidal gages, or other suitable means that delineate the general height reached by a rising
tide. The line encompasses spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a departure from the normal or
predicted reach of the tide due to the piling up of water against a coast by strong winds such
as those accompanying a hurricane or other intense storm.

Historic Property: Any prehistoric or historic district, site (including archaeological site),
building, structure, or other object included in, or eligible for inclusion in, the National
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

19

Register of Historic Places maintained by the Secretary of the Interior. This term includes
artifacts, records, and remains that are related to and located within such properties. The term
includes properties of traditional religious and cultural importance to an Indian tribe or Native
Hawaiian organization and that meet the National Register criteria (36 CFR part 60).

Independent utility: A test to determine what constitutes a single and complete non-linear
project in the Corps Regulatory Program. A project is considered to have independent utility if
it would be constructed absent the construction of other projects in the project area. Portions of
a multi-phase project that depend upon other phases of the project do not have independent
utility. Phases of a project that would be constructed even if the other phases were not built
can be considered as separate single and complete projects with independent utility.

Indirect effects: Effects that are caused by the activity and are later in time or farther removed
in distance but are still reasonably foreseeable.

Loss of waters of the United States: Waters of the United States that are permanently
adversely affected by filling, flooding, excavation, or drainage because of the regulated activity.
The loss of stream bed includes the acres of stream bed that are permanently adversely
affected by filling or excavation because of the regulated activity. Permanent adverse effects
include permanent discharges of dredged or fill material that change an aquatic area to dry
land, increase the bottom elevation of a waterbody, or change the use of a waterbody. The
acreage of loss of waters of the United States is a threshold measurement of the impact to
jurisdictional waters or wetlands for determining whether a project may qualify for an NWP; it is
not a net threshold that is calculated after considering compensatory mitigation that may be
used to offset losses of aquatic functions and services. Waters of the United States temporarily
filled, flooded, excavated, or drained, but restored to pre-construction contours and elevations
after construction, are not included in the measurement of loss of waters of the United States.
Impacts resulting from activities that do not require Department of the Army authorization, such
as activities eligible for exemptions under section 404(f) of the Clean Water Act, are not
considered when calculating the loss of waters of the United States.

Navigable waters: Waters subject to section 10 of the Rivers and Harbors Act of 1899. These
waters are defined at 33 CFR part 329.

Non-tidal wetland: A non-tidal wetland is a wetland that is not subject to the ebb and flow of
tidal waters. Non- tidal wetlands contiguous to tidal waters are located landward of the high
tide line (i.e., spring high tide line).

Open water: For purposes of the NWPs, an open water is any area that in a year with normal
patterns of precipitation has water flowing or standing above ground to the extent that an
ordinary high water mark can be determined. Aquatic vegetation within the area of flowing or
standing water is either non-emergent, sparse, or absent. Vegetated shallows are considered
to be open waters. Examples of ‘‘open waters’’ include rivers, streams, lakes, and ponds.

Ordinary High Water Mark: The term ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical characteristics such as a
clear, natural line impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.

Perennial stream: A perennial stream has surface water flowing continuously year-round
during a typical year.
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

20

Practicable: Available and capable of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes.

Pre-construction notification: A request submitted by the project proponent to the Corps for
confirmation that a particular activity is authorized by nationwide permit. The request may be a
permit application, letter, or similar document that includes information about the proposed
work and its anticipated environmental effects. Pre- construction notification may be required
by the terms and conditions of a nationwide permit, or by regional conditions. A pre-
construction notification may be voluntarily submitted in cases where pre-construction
notification is not required and the project proponent wants confirmation that the activity is
authorized by nationwide permit.

Preservation: The removal of a threat to, or preventing the decline of, aquatic resources by an
action in or near those aquatic resources. This term includes activities commonly associated
with the protection and maintenance of aquatic resources through the implementation of
appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic
resource area or functions.

Re-establishment: The manipulation of the physical, chemical, or biological characteristics of a
site with the goal of returning natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and results in a gain in aquatic
resource area and functions.

Rehabilitation: The manipulation of the physical, chemical, or biological characteristics of a site
with the goal of repairing natural/historic functions to a degraded aquatic resource.
Rehabilitation results in a gain in aquatic resource function but does not result in a gain in
aquatic resource area.

Restoration: The manipulation of the physical, chemical, or biological characteristics of a site
with the goal of returning natural/historic functions to a former or degraded aquatic resource.
For the purpose of tracking net gains in aquatic resource area, restoration is divided into two
categories: Re-establishment and rehabilitation.

Riffle and pool complex: Riffle and pool complexes are special aquatic sites under the
404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient
sections of streams. Such stream sections are recognizable by their hydraulic characteristics.
The rapid movement of water over a course substrate in riffles results in a rough flow, a
turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas
associated with riffles. A slower stream velocity, a streaming flow, a smooth surface, and a
finer substrate characterize pools.

Riparian areas: Riparian areas are lands next to streams, lakes, and estuarine-marine
shorelines. Riparian areas are transitional between terrestrial and aquatic ecosystems, through
which surface and subsurface hydrology connects riverine, lacustrine, estuarine, and marine
waters with their adjacent wetlands, non-wetland waters, or uplands. Riparian areas provide a
variety of ecological functions and services and help improve or maintain local water quality.
(See general condition 23.)

Shellfish seeding: The placement of shellfish seed and/or suitable substrate to increase
shellfish production. Shellfish seed consists of immature individual shellfish or individual
shellfish attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

21

consist of shellfish shells, shell fragments, or other appropriate materials placed into waters for
shellfish habitat.

Single and complete linear project: A linear project is a project constructed for the purpose of
getting people, goods, or services from a point of origin to a terminal point, which often
involves multiple crossings of one or more waterbodies at separate and distant locations. The
term ‘‘single and complete project’’ is defined as that portion of the total linear project proposed
or accomplished by one owner/developer or partnership or other association of
owners/developers that includes all crossings of a single water of the United States (i.e., a
single waterbody) at a specific location. For linear projects crossing a single or multiple
waterbodies several times at separate and distant locations, each crossing is considered a
single and complete project for purposes of NWP authorization. However, individual channels
in a braided stream or river, or individual arms of a large, irregularly shaped wetland or lake,
etc., are not separate waterbodies, and crossings of such features cannot be considered
separately.

Single and complete non-linear project: For non-linear projects, the term ‘‘single and complete
project’’ is defined at 33 CFR 330.2(i) as the total project proposed or accomplished by one
owner/developer or partnership or other association of owners/developers. A single and
complete non-linear project must have independent utility (see definition of ‘‘independent
utility’’). Single and complete non-linear projects may not be ‘‘piecemealed’’ to avoid the limits
in an NWP authorization.

Stormwater management: Stormwater management is the mechanism for controlling
stormwater runoff for the purposes of reducing downstream erosion, water quality degradation,
and flooding and mitigating the adverse effects of changes in land use on the aquatic
environment.

Stormwater management facilities: Stormwater management facilities are those facilities,
including but not limited to, stormwater retention and detention ponds and best management
practices, which retain water for a period of time to control runoff and/or improve the quality
(i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other
pollutants) of stormwater runoff.

Stream bed: The substrate of the stream channel between the ordinary high water marks. The
substrate may be bedrock or inorganic particles that range in size from clay to boulders.
Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not
considered part of the stream bed.

Stream channelization: The manipulation of a stream’s course, condition, capacity, or location
that causes more than minimal interruption of normal stream processes. A channelized
jurisdictional stream remains a water of the United States.

Structure: An object that is arranged in a definite pattern of organization. Examples of
structures include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir,
boom, breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent
mooring structure, power transmission line, permanently moored floating vessel, piling, aid to
navigation, or any other manmade obstacle or obstruction.

Tidal wetland: A tidal wetland is a jurisdictional wetland that is inundated by tidal waters. Tidal
waters rise and fall in a predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

22

longer be practically measured in a predictable rhythm due to masking by other waters, wind,
or other effects. Tidal wetlands are located channelward of the high tide line.

Tribal lands: Any lands title to which is either: (1) Held in trust by the United States for the
benefit of any Indian tribe or individual; or (2) held by any Indian tribe or individual subject to
restrictions by the United States against alienation.

Tribal rights: Those rights legally accruing to a tribe or tribes by virtue of inherent sovereign
authority, unextinguished aboriginal title, treaty, statute, judicial decisions, executive order or
agreement, and that give rise to legally enforceable remedies.

Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1)
Guidelines. They are areas that are permanently inundated and under normal circumstances
have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a
variety of vascular rooted plants in freshwater systems.

Waterbody: For purposes of the NWPs, a waterbody is a ‘‘water of the United States.’’ If a
wetland is adjacent to a waterbody determined to be a water of the United States, that
waterbody and any adjacent wetlands are considered together as a sing e aquatic unit (see 33
CFR 328.4(c)(2)).

Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

23

REGIONAL CONDITIONS:

The following Regional Conditions have been approved by the Wilmington District for the
Nationwide Permits (NWPs) published in the January 13, 2021, and December 27, 2021,
Federal Register (86 FR 2744 and 86 FR 73522) announcing the reissuance of 52 existing
(NWPs) and five new NWPs, as well as the reissuance of NWP general conditions and
definitions with some modifications.

A. EXCLUDED WATER AND/OR AREAS

The Corps has identified waters that will be excluded from the use of all NWP’s during certain
timeframes. These waters are:

1. Anadromous Fish Spawning Areas. Work in waters of the U.S. designated by either the
North Carolina Division of Marine Fisheries (NCDMF) or the North Carolina Wildlife Resources
Commission (NCWRC) as anadromous fish spawning areas are prohibited from February 15th
through June 30th, without prior written approval from the Corps and the appropriate wildlife
agencies (NCDMF, NCWRC and/or the National Marine Fisheries Service (NMFS)). Work in
waters of the U.S. designated by NCWRC as primary nursery areas in inland waters are
prohibited from February 15th through September 30th, without prior written approval from the
Corps and the appropriate wildlife agencies. Work in waters of the U.S. designated by NCDMF
as primary nursery areas shall be coordinated with NCDMF prior to being authorized by this
NWP. Coordination with NCDMF may result in a required construction moratorium during
periods of significant biological productivity or critical life stages.

2. Trout Waters Moratorium. Work in waters of the U.S. in the designated trout watersheds
of North Carolina are prohibited from October 15th through April 15th without prior written
approval from the NCWRC, or from the Eastern Band of Cherokee Indians (EBCI) Fisheries
and Wildlife Management (FWM) office if the project is located on EBCI trust land. (See
Section C.3. below for information on the designated trout watersheds).

3. Sturgeon Spawning Areas. No in-water work shall be conducted in waters of the U.S.
designated by the National Marine Fisheries Service as Atlantic sturgeon critical habitat from
February 1st through June 30th. No in-water work shall be conducted in waters of the U.S. in
the Roanoke River designated as Atlantic sturgeon critical habitat from February 1st through
June 30th, and August 1st through October 31st, without prior written approval from NMFS.

4. Submerged Aquatic Vegetation. Impacts to Submerged Aquatic Vegetation (SAV) are not
authorized by any NWP, except NWP 48, NWP 55 and NWP 56, unless Essential Fish Habitat
(EFH) consultation has been completed pursuant to the Magnuson-Stevens Fisheries
Conservation and Management Act (Magnuson-Stevens Act). Permittees shall submit a PCN
(See NWP General Condition 32) to the District Engineer prior to commencing the activity if the
project would affect SAV. The permittee may not begin work until notified by the Corps that the
requirements of the Magnuson-Stevens Act have been satisfied and that the activity is verified.

B. REGIONAL CONDITIONS APPLICABLE TO ALL NWP’s

1. Critical Habitat in Western NC. For proposed activities within waters of the U.S. that
require a Pre-Construction Notification (PCN) and are located in the thirteen counties listed
below, permittees must provide a copy of the PCN to the U.S. Fish and Wildlife Service
(USFWS), 160 Zillicoa Street, Asheville, North Carolina 28801 and the Corps Asheville
Regulatory Field Office. Please see General Condition 18 for specific PCN requirements
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

24

related to the Endangered Species Act and the below website for information on the location of
designated critical habitat.

Counties with tributaries that drain to designated critical habitat that require notification to the
Asheville U.S. Fish and Wildlife Service: Avery, Cherokee, Graham, Haywood, Henderson,
Jackson, Macon, Mecklenburg, Mitchell, Swain, Transylvania, Union and Yancey.

Website and office addresses for Endangered Species Act Information:

The Wilmington District has developed the following website for permittees which provides
guidelines on how to review linked websites and maps in order to fulfill NWP General
Condition 18 (Endangered Species) requirements:
http://www.saw.usace.army.mil/Missions/RegulatoryPermitProgram/AgencyCoordination/ESA.
aspx.

Permittees who do not have internet access may contact the appropriate U.S. Fish and Wildlife
Service offices listed below or Corps at [phone].

Below is a map of the USFWS Field Office Boundaries:

Asheville U.S. Fish and Wildlife Service Office counties: All counties west of and
including Anson, Stanly, Davidson, Forsythe and Stokes Counties.

U.S. Fish and Wildlife Service
Asheville Field Office
160 Zillicoa Street
Asheville, NC 28801
Telephone: [phone]

Raleigh U.S. Fish and Wildlife Service Office counties: All counties east of and including
Richmond, Montgomery, Randolph, Guilford, and Rockingham Counties.

U.S. Fish and Wildlife Service
Raleigh Field Office
Post Office Box 33726
Raleigh, NC 27636-3726
Telephone: [phone]
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

25

2. Special Designation Waters. Prior to the use of any NWP that involves a discharge of
dredged or fill material in any of the following identified waters and/or adjacent wetlands in
North Carolina, permittees shall submit a PCN to the District Engineer prior to commencing the
activity (see General Condition 32). The North Carolina waters and wetlands that require
additional PCN requirements are:

“Primary Nursery Areas” (PNA), including inland PNA, as designated by the North Carolina
Marine Fisheries Commission and/or the North Carolina Wildlife Resources Commission. The
definition of and designated PNA waters can be found in the North Carolina State
Administrative Code at Title 15A, Subchapters 3R and 10C (15A NCAC 03R .0103; 15A NCAC
10C .0502; and 15A NCAC 10C .0503) and at the following web pages:

• http://reports.oah.state.nc.us/ncac/title%2015a%20-
%20environmental%20quality/chapter%2003%20-
%20marine%20fisheries/subchapter%20r/15a%20ncac%2003r%20.0103.pdf

• http://reports.oah.state.nc.us/ncac/title%2015a%20-
%20environmental%20quality/chapter%2010%20-
%20wildlife%20resources%20and%20water%20safety/subchapter%20c/15a%20ncac%2010c
%20.0502.pdf

• http://reports.oah.state.nc.us/ncac/title%2015a%20-
%20environmental%20quality/chapter%2010%20-
%20wildlife%20resources%20and%20water%20safety/subchapter%20c/15a%20ncac%2010c
%20.0503.pdf

3. Trout Waters. Prior to any discharge of dredge or fill material into streams, waterbodies or
wetlands within the 294 designated trout watersheds of North Carolina, the permittee shall
submit a PCN (see General Condition 32) to the District Engineer prior to commencing the
activity. The permittee shall also provide a copy of the PCN to the appropriate NCWRC office,
or to the EBCI FWM Office (if the project is located on EBCI trust land), to facilitate the
determination of any potential impacts to designated Trout Waters.

NCWRC and NC Trout Watersheds:

NCWRC
Contact**
Counties that are entirely
within Trout Watersheds*
Counties that are
partially within Trout
Watersheds*
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

26

Mountain
Coordinator
645 Fish
Hatchery
Rd., Building
B
Marion, NC
28752
828-803-
6054

For NCDOT
Projects:

NCDOT
Coordinator
12275 Swift
Rd.
Oakboro,
NC 28129
704-984-
1070

Alleghany
Ashe
Avery
Graham
Haywood

Jackson
Macon
Swain
Transylvania
Watauga

Burke
Buncombe
Caldwell
Cherokee
Clay
Henderson
Madison
McDowell
Mitchell
Polk
Rutherford
Surry
Wilkes
Yancey
EBCI
Contact**
Counties that are within
Trout Watersheds*

Office of
Natural
Resources
P.O. Box 1747,
Cherokee, NC
28719
[phone]

Qualla Boundary and non-
contiguous tracts of trust
land located in portions of
Swain, Jackson, Haywood,
Graham and Cherokee
Counties.

*NOTE: To determine PCN requirements, contact the Corps Asheville Regulatory Field Office
at [phone] or view maps showing trout watersheds in each County at the following
webpage: http://www.saw.usace.army.mil/Missions/Regulatory-Permit-Program/Agency-
Coordination/Trout/.

**If a project is located on EBCI trust land, submit the PCN in accordance with Regional
Condition C.16. Contact the Corps Asheville Regulatory Field Office at [phone] with
questions.

4. Western NC Waters and Corridors. The permittee shall submit a PCN (see General
Condition 32) to the District Engineer prior to commencing the activity in waters of the U.S. if
the activity will occur within any of the following identified waters in western North Carolina,
within 0.5 mile on either side of these waters, or within 0.75 mile of the Little Tennessee River,
as measured from the top of the bank of the respective water (i.e., river, stream, or creek):

Brasstown Creek
Burningtown Creek
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

27

Cane River
Caney Fork
Cartoogechaye Creek
Chattooga River
Cheoah River
Cowee Creek
Cullasaja River
Deep Creek
Ellijay Creek
French Broad River
Garden Creek
Hiwassee River
Hominy Creek
Iotla Creek
Little Tennessee River (within the river or within 0.75 mile on either side of this river)
Nantahala River
Nolichucky River
North Fork French Broad River
North Toe River
Nottley River
Oconaluftee River (portion not located on trust/EBCI land)
Peachtree Creek
Shooting Creek
Snowbird Creek
South Toe River
Stecoah Creek
Swannanoa River
Sweetwater Creek
Tuckasegee River (also spelled Tuckaseegee or Tuckaseigee)
Valley River
Watauga Creek
Watauga River
Wayah Creek
West Fork French Broad River

To determine PCN requirements, contact the Corps Asheville Regulatory Field Office at (828)
271-7980 or view maps for all corridors at the following webpage:
http://www.saw.usace.army.mil/Missions/Regulatory-Permit-Program/Agency-
Coordination/Designated-Special-Waters.aspx .

5. Limitation of Loss of Stream Bed. NWPs may not be used for activities that may result in
the loss of more than 0.05 acres of stream bed, except for NWP 32.

6. Pre-Construction Notification for Loss of Stream Bed Exceeding 0.02 acres. The
permittee shall submit a PCN to the District Engineer prior to commencing the activity (see
General Condition 32) prior to the use of any NWP for any activity that results in the loss of
more than 0.02 acres of stream bed. This applies to NWPs that do not have PCN requirements
as well as those NWPs that require a PCN.

7. Mitigation for Loss of Stream Bed. For any NWP that results in a loss of more than 0.02
acres of stream bed, the permittee shall provide a mitigation proposal to compensate for more
than minimal individual and cumulative adverse impacts to the aquatic environment, unless the
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

28

District Engineer determines in writing that either some other form of mitigation would be more
environmentally appropriate or the adverse effects of the proposed activity are minimal. For
stream bed losses of 0.02 acres or less that require a PCN, the District Engineer may
determine, on a case-by-case basis, that compensatory mitigation is required to ensure that
the activity results in minimal adverse effect on the aquatic environment.

8. Riprap. For all NWPs that allow for the use of riprap material for bank stabilization, the
following conditions shall be applied:

a. Filter cloth must be placed underneath the riprap as an additional requirement of its use in
North Carolina waters. The placement of filter fabric is not required if the riprap will be pushed
or “keyed” into the bank of the waterbody. A waiver from the specifications in this Regional
Condition must be requested in writing.

b. Riprap shall be placed only on the stream banks, or, if it is necessary to be placed in the
stream bed, the finished top elevation of the riprap should not exceed that of the original
stream bed.

9. Culvert Placement. For all NWPs that allow for culvert placement, the following conditions
shall be applied:

a. For all NWPs that involve the construction/installation of culverts, measures shall be
included in the construction/installation that will promote the safe passage of fish and other
aquatic organisms

Placement of culverts and other structures in streams shall be below the elevation of the
streambed by one foot for all culverts with a diameter greater than 48 inches, and 20% of the
culvert diameter for culverts having a diameter less than or equal to 48 inches. If the culvert
outlet is submerged within a pool or scour hole and designed to provide for aquatic passage,
then culvert burial into the streambed is not required.

Culvert burial is not required for structures less than 72 inch diameter/width, where the slope of
the culvert will be greater than 2.5%, provided that all alternative options for flattening the
slope have been investigated and aquatic life movement/connectivity has been provided when
possible (e.g., rock ladders, cross vanes, sills, baffles etc.). Culvert burial is not required when
bedrock is present in culvert locations.

Installation of culverts in wetlands shall ensure continuity of water movement and be designed
to adequately accommodate high water or flood conditions. When roadways, causeways, or
other fill projects are constructed across FEMA-designated floodways or wetlands, openings
such as culverts or bridges shall be provided to maintain the natural hydrology of the system
as well as prevent constriction of the floodway that may result in destabilization of streams or
wetlands.
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

29

A waiver from the depth specifications in this condition may be requested, in writing, by the
permittee and issued by the Corp. This waiver request must be specific as to the reasons(s) for
the request. The waiver will be issued if it can be demonstrated that the proposed design
would result in less impacts to the aquatic environment. Culverts placed across wetland fills
purely for the purposes of equalizing surface water do not have to be buried, but the culverts
must be of adequate size and/or number to ensure unrestricted transmission of water.

b. Bank-full flows (or less) shall be accommodated through maintenance of the existing bank-
full channel cross sectional area. Additional culverts or culvert barrels at such crossings shall
be allowed only to receive bank-full flows.

c. Culverts shall be designed and installed in such a manner that the original stream profiles
are not altered and allow for aquatic life movement during low flows. The dimension, pattern,
and profile of the stream above and below a pipe or culvert shall not be modified by widening
the stream channel or by reducing the depth of the stream in connection with the construction
activity. The width, height, and gradient of a proposed culvert shall be such as to pass the
average historical low flow and spring flow without adversely altering flow velocity. If the width
of the culvert is wider than the stream channel, the culvert shall include multiple boxes/pipes,
baffles, benches and/or sills to maintain the natural width of the stream channel. If multiple
culverts/pipes/barrels are used, low flows shall be accommodated in one culvert/pipe and
additional culverts/pipes shall be installed such that they receive only flows above bankfull.

10. Utility Lines. For all NWPs that allow for the construction and installation of utility lines, the
following conditions shall be applied:

a. Utility lines consisting of aerial electric power transmission lines crossing navigable waters
of the U.S. (which are defined at 33 CFR part 329) must comply with the applicable minimum
clearances specified in 33 CFR 322.5(i).
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

30

b. The work area authorized by this permit, including temporary and/or permanent fills, will be
minimized to the greatest extent practicable. Justification for work corridors exceeding forty
(40) feet in width is required and will be based on pipeline diameter and length, size of
equipment required to construct the utility line, and other construction information deemed
necessary to support the request. The permittee is required to provide this information to the
Corps with the initial PCN package.

c. A plan to restore and re-vegetate wetland areas cleared for construction must be submitted
with the required PCN. Cleared wetland areas shall be re-vegetated, as appropriate, with
species of canopy, shrub, and herbaceous species. The permittee shall not use fescue grass
or any other species identified as invasive or exotic species by the NC Native Plant Society
(NCNPS): https://ncwildflower.org/invasive-exotic-species-list/.

d. Any permanently maintained corridor along the utility right of way within forested wetlands
shall be considered a loss of aquatic function. A compensatory mitigation plan will be required
for all such impacts associated with the requested activity if the activity requires a PCN and the
cumulative total of permanent conversion of forested wetlands exceeds 0.1 acres, unless the
District Engineer determines in writing that either some other form of mitigation would be more
environmentally appropriate or the adverse effects of the proposed activity are minimal.

Where permanently maintained corridor within forested wetlands is 0.1 acres or less, the
District Engineer may determine, on a case-by-case basis, that compensatory mitigation is
required to ensure that the activity results in minimal adverse effects on the aquatic
environment.

e. When directional boring or horizontal directional drilling (HDD) under waters of the U.S.,
including wetlands, permittees shall closely monitor the project for hydraulic fracturing or
“fracking.” Any discharge from hydraulic fracturing or “fracking” into waters of the U.S.,
including wetlands, shall be reported to the appropriate Corps Regulatory Field Office within 48
hours. Restoration and/or compensatory mitigation may be required as a result of any
unintended discharges.

11. Temporary Access Fills. The permittee shall submit a PCN to the District Engineer prior
to commencing the activity if the activity will involve the discharge of dredged or fill material
into more than 0.1 acres of wetlands or 0.02 acres of stream channel for the construction of
temporary access fills and/or temporary road crossings. The PCN must include a restoration
plan that thoroughly describes how all temporary fills will be removed, how pre-project
conditions will be restored, and include a timetable for all restoration activities.

12. Federal Navigation Channel Setbacks. Authorized structures and fills located in or
adjacent to Federally authorized waterways must be constructed in accordance with the latest
setback criteria established by the Wilmington District Engineer. You may review the setback
policy at http://www.saw.usace.army.mil/Missions/Navigation/Setbacks.aspx. This general
permit does not authorize the construction of hardened or permanently fixed structures within
the Federally Authorized Channel Setback, unless the activity is approved by the Corps. The
permittee shall submit a PCN (see General Condition 32) to the District Engineer to obtain a
written verification prior to the construction of any structures or fills within the Federally
Authorized Channel Setback.

13. Northern Long-eared Bat – Endangered Species Act Compliance. The Wilmington
District, U.S. Army Corps of Engineers has consulted with the United States Fish and Wildlife
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

31

Service (USFWS) in regard to the threatened northern long-eared bat (NLEB) (Myotis
septentrionalis) and Standard Local Operating Procedures for Endangered Species (SLOPES)
have been approved by the Corps and the USFWS. This condition concerns effects to the
NLEB only and does not address effects to other federally listed species and/or federally
designated critical habitat.

a. Procedures when the Corps is the lead federal* agency for a project:

The permittee must comply with (1) and (2) below when:

• the project is located in the western 41 counties of North Carolina, to include non-federal aid
North Carolina Department of Transportation (NCDOT) projects, OR;

• the project is located in the 59 eastern counties of North Carolina and is a non-NCDOT
project.

*Generally, if a project is located on private property or on non-federal land, and the project is
not being funded by a federal entity, the Corps will be the lead federal agency due to the
requirement to obtain Department of the Army authorization to impact waters of the U.S. If the
project is located on federal land, contact the Corps to determine the lead federal agency.

(1) A permittee using an NWP must check to see if their project is located in the range of the
NLEB by using the following website:
http://www.fws.gov/midwest/endangered/mammals/nleb/pdf/WNSZone.pdf. If the project is
within the range of the NLEB, or if the project includes percussive activities (e.g., blasting, pile
driving, etc.), the permittee is then required to check the appropriate website in the paragraph
below to discover if their project:

• is located in a 12-digit Hydrologic Unit Code area (“red HUC” - shown as red areas on the
map), AND/OR;

• involves percussive activities within 0.25 mile of a red HUC.

Red HUC maps - for the western 41 counties in NC (covered by the Asheville Ecological
Services Field Office), check the project location against the electronic maps found at:
http://www.fws.gov/asheville/htmls/project_review/NLEB_in_WNC.html. For the eastern 59
counties in NC (covered by the Raleigh Ecological Services Field Office), check the project
location against the electronic maps found at: https://www.fws.gov/raleigh/NLEB_RFO.html.

(2) A permittee must submit a PCN to the District Engineer, and receive written verification
from the District Engineer, prior to commencing the activity, if the activity will involve any of the
following:

• tree clearing/removal and/or, construction/installation of wind turbines in a red HUC,
AND/OR;

• bridge removal or maintenance, unless the bridge has been inspected and there is no
evidence of bat use, (applies anywhere in the range of the NLEB), AND/OR:

• percussive activities in a red HUC, or within 0.25 mile of a red HUC.

Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

32

The permittee may proceed with the activity without submitting a PCN to either the Corps or
the USFWS, provided the activity complies with all applicable NWP terms and general and
regional conditions, if the permittee’s review under A.(1) and A.(2) above shows that the
project is:

• located outside of a red HUC (and there are no percussive activities), and the activity will
NOT include bridge removal or maintenance, unless the bridge has been inspected and there
is no evidence of bat use, OR;
• located outside of a red HUC and there are percussive activities, but the percussive activities
will not occur within 0.25-mile of a red HUC boundary, and the activity will NOT include bridge
removal or maintenance, unless the bridge has been inspected and there is no evidence of bat
use, OR;
• located in a red HUC, but the activity will NOT include tree clearing/removal;
construction/installation of wind turbines; bridge removal or maintenance, unless the bridge
has been inspected and there is no evidence of bat use, and/or; any percussive activities.

b. Procedures when the USACE is not the lead federal agency:

For projects where another federal agency is the lead federal agency - if that other federal
agency has completed project-specific ESA Section 7(a)(2) consultation for the NLEB, and has
(1) determined that the project would not cause prohibited incidental take of the NLEB, and (2)
completed coordination/consultation that is required by the USFWS (per the directions on the
respective USFWS office’s website), that project may proceed without PCN to either the
USACE or the USFWS, provided all General and Regional Permit Conditions are met.

The NLEB SLOPES can be viewed on the USACE website at:
http://www.saw.usace.army.mil/Missions/Regulatory-Permit-Program/Agency-
Coordination/ESA/. Permittees who do not have internet access may contact the USACE at
(910) 251- 4633.

14. West Indian Manatee Protection. In order to protect the endangered West Indian
manatee (Trichechus manatus) the Permittee shall implement the USFWS’ Manatee
Guidelines, and strictly adhere to all requirements therein. The guidelines can be found at
https://www.fws.gov/raleigh/pdfs/ManateeGuidelines2017.pdf.

15. ESA Programmatic Biological Opinions. The Wilmington District, USFWS, NCDOT, and
the FHWA have conducted programmatic Section 7(a)(2) consultation for a number of federally
listed species and designated critical habitat (DCH), and programmatic consultation
concerning other federally listed species and/or DCH may occur in the future. The result of
completed programmatic consultation is a Programmatic Biological Opinion (PBO) issued by
the USFWS. These PBOs contain mandatory terms and conditions to implement the
reasonable and prudent measures that are associated with “incidental take” of whichever
species or critical habitat is covered by a specific PBO. Authorization under NWPs is
conditional upon the permittee’s compliance with all the mandatory terms and conditions
associated with incidental take of the applicable PBO (or PBOs), which are incorporated by
reference in the NWPs. Failure to comply with the terms and conditions associated with
incidental take of an applicable PBO, where a take of the federally listed species occurs, would
constitute an unauthorized take by the permittee, and would also constitute permittee non-
compliance with the authorization under the NWPs. If the terms and conditions of a specific
PBO (or PBOs) apply to a project, the Corps will include this/these requirements in any NWP
verification that may be issued for a project. For an activity/project that does not require a
PCN, the terms and conditions of the applicable PBO(s) also apply to that non-notifying
Nationwide Permit 3 - Activities, Regional Conditions, General Conditions, and Definitions

33

activity/project. The USFWS is the appropriate authority to determine compliance with the
terms and conditions of its PBO and the ESA. All PBOs can be found on our website at:
https://www.saw.usace.army.mil/Missions/Regulatory-Permit-Program/Agency-
Coordination/ESA/.

16. Work on Eastern Band of Cherokee Indian Land.

Notifying NWPs - All PCNs submitted for activities in waters of the U.S. on Eastern Band of
Cherokee Indians (EBCI) trust land (i.e., Qualla Boundary and non-contiguous tracts of trust
land located in portions of Swain, Jackson, Haywood, Graham and Cherokee Counties),
must comply with the requirements of the latest MOU between the Wilmington District and
the EBCI.

Non-notifying NWPs - Prior to the use of any non-notifying NWP for activities in waters of
the U.S. on EBCI trust land (i.e., Qualla Boundary and non-contiguous tracts of trust land
located in portions of Swain, Jackson, Haywood, Graham and Cherokee Counties), all
prospective permittees must comply with the requirements of the latest MOU between the
Wilmington District and the EBCI; this includes coordinating the proposed project with the
EBCI Natural Resources Program and obtaining a Tribal Approval Letter from the Tribe.

The EBCI MOU can be found at the following URL: http://saw-reg.usace.army.mil/FO/Final-
MOU-EBCI-USACE.pdf

17. Sedimentation and Erosion Control Structures and Measures.

All PCNs will identify and describe sedimentation and erosion control structures and
measures proposed for placement in waters of the U.S. The structures and measures
should be depicted on maps, surveys or drawings showing location and impacts to
jurisdictional wetlands and streams.

C. REGIONAL CONDITIONS APPLICABLE TO NWP 3

1. In designated trout watersheds, a PCN is not required for impacts to a maximum of 0.02
acres for temporary dewatering) of streams and waterbodies when conducting maintenance
activities. Minor deviations in an existing structure’s configuration, temporary structures and
temporary fills are authorized as part of the maintenance activity. In designated trout
watersheds, the permittee shall submit a PCN (see Regional Condition C.3 above and General
Condition 32) to the District Engineer prior to commencing the activity if; 1) impacts (other than
temporary dewatering to work in dry conditions) to streams or waterbodies exceed 0.008
acres; 2) temporary impacts to streams or waterbodies associated with dewatering to work in
dry conditions exceeds 0.02 acres; 3) the project will involve impacts to wetlands; 4) the
project involves the replacement of a bridge or spanning structure with a culvert or non-
spanning structure in waters of the United States; or 5) the activity will be constructed during
the trout waters moratorium (October 15 through April 15).

D. SECTION 401 WATER QUALITY CERTIFICATION (WQC) AND/OR COASTAL ZONE
MANAGEMENT ACT (CZMA) CONSISTENCY DETERMINATION SUMMARY AND
APPLICABLE CONDITIONS

The CZMA Consistency Determination and all Water Quality Certifications for the NWPs can
be found at: https://www.saw.usace.army.mil/Missions/Regulatory-Permit-
Program/Permits/2017-Nationwide-Permits/